Research On The Legislation Of The Discharge System In Bankruptcy Of Individuals In China

The discharge system is a peculiar system in the bankruptcy system of individuals, and it's at the core of the bankruptcy system of individuals. Finding a solution of how to design the discharge system is an important problem to give impetus to establishing the Personal Bankruptcy Law in China. Designing a perfect system of discharge is an impotent guarantee for carrying out the Personal Bankruptcy Law in China successfully. In our country, relative researches on the theory and legislative of the discharge system are not systematic. Doing more thoroughgoing researches is necessary.This paper will discuss from legal history methods, value analysis methods, comparative methods and economic analysis methods. This paper introduces the basic theories related to the discharge system of individuals, and does some comparative researches on the legislations between some countries and districts, and intends to provide some legal proposal based on the reality of China and theories for the establishing of the discharge system of individuals in China, and promote the legislation on personal bankruptcy in China. Except the preface and conclusion, the content of this paper will be divided into three parts:Section 1 introduces the basic theories related to the discharge system. The discharge system is defined from the perspective of the initiation of this system and the subject of this system applicable to. Discharge is a right that can not give up. Then the paper introduces the two ideas of the discharge system, and from reviewing the historical development of bankruptcy discharge concluded that the modern idea of the bankruptcy discharge system is to encourage debtor's fresh start under the interests balance. From the perspective of economics, sociology and the human right, discusses the functions of the bankruptcy discharge system, and expounds the significances of the bankruptcy legislation to our country, that is, the value of the system.Section 2 is about the legislative practice of the bankruptcy discharge system. Firstly, the paper introduces the two legislation models, that is the apparent relief system and approved relief system, and compares the similarity and divergence .Secondly, the paper compares the relevant stipulations of some countries such as American, England, Germany and Japan. Different countries intend to achieve the balanced interests purpose, setting up to a great kinds of conditions and limitations which including the situations that the bankrupt cannot be discharged, the debts that cannot be discharged and the situations that the judgment can be removed. Finally, concludes some enlightenment from reviewing the relevant stipulations of some other countries, including the distinction of the debt that could be exempted and could not be exempted, the restrictive conditions, the limitations of the number of times, the tendency of stringent conditions of discharge, the effects, and so on.Section 3 is about to review and construct the legislation of the bankruptcy discharge system of individuals in China. At first, discharge is justified by analysis of the necessity and feasibility of the bankruptcy system of individuals. Then, it evaluates and analyses the provisions of the discharge system in the new bankruptcy law draft of China, and points out the deficiency of the draft. Finally, the paper analyses the construction of the discharge system of individuals in China at both macroscopic and microscopic levels, and puts forward the detailed legislative proposals based on the reality of China. The macroscopic construction includes: the legislators in china should select approved relief system; designing the discharge system should distinguish the bankruptcy liquidation cases and the non-bankruptcy liquidation (debt adjustment) cases. The specific provisions' designing of the discharge system includes: the procedures of application, the debtor that cloud exempt from debt, restrictive condition, exceptional condition, the limitations of time, revocation condition, the effects, and so on.